Harris v. Harris, Va. App. unpublished (11/13/2012)
The husband appeals an order of the trial court denying his motion to modify spousal and child support. Husband alleged that his wife had been habitually cohabiting with another man in a relationship analogous to a marriage for more than one year. Accordingly, husband sought to terminate his spousal support payments pursuant to Code § 20-109(A). On appeal, husband assigns the following errors. The trial court erred by concluding the evidence was insufficient to prove that wife was cohabiting with another person in a relationship analogous to a marriage for more than one year, the trial court erred by misinterpreting and misapplying the applicable common law factors to the facts of this case in its determination of whether wife was cohabiting with another person in a relationship analogous to a marriage for more than one year, and the trial court erred by permitting wife’s lay witnesses to give opinion testimony regarding the ultimate issue of fact. The court addressed the husband's first two assignments of error simultaneously because they are closely related. As we have recently emphasized, “‘the term “cohabit” means to live together in the same house as married persons live together, or in the manner of husband and wife.’” Cranwell v. Cranwell, 59 Va. App. 155, 161, 717 S.E.2d 797, 800 (2011) Indeed, “[t]he requirement that the payee ex-spouse and that party’s paramour be shown to have established and shared a common residence is firmly established in Virginia case law.” “Thus, if two individuals do not share a common residence, they are not cohabiting. Although ‘proof of a common or shared residence does not itself establish cohabitation,’ sharing a common residence is a ‘requirement’ for cohabitation.” The parties’ daughter, who lived with wife, testified that she saw the boyfriend only once or twice a week and that at times she would not see him for two weeks. The daughter also verified that the boyfriend had a separate house near Charlottesville. The trial court concluded that husband had failed to prove, by clear and convincing evidence, that wife was cohabiting with her boyfriend. The trial court expressly found, “I don’t think they ever established a common residence.” With respect to husband’s third assignment of error regarding the admission of lay opinion testimony, we note that husband’s entire argument on this issue in his brief consists of the following: “It further was material error of law to allow the opinion testimony of lay witnesses as to the ultimate issue of fact, of whether the wife and her paramour were living together, over the objection of the appellant. The trial court committed material and prejudicial error in this regard.” Therefore, there was no error in trial court’s finding that appellant did not prove by clear and convincing evidence that appellee was cohabiting with her boyfriend; appellant’s issue regarding lay opinion testimony waived under Rule 5A:20(e).